A Connecticut man called the radio show of personal-finance guru Dave Ramsey, and inadvertently gave a master class in what not to do in a divorce:
1. Never, ever, sign away your interest in a matrimonial home without the other party refinancing the property. This poor fellow signed a quit claim deed, but his ex-wife didn’t obtain a new mortgage. Now she’s decided she’s not going to make the payments anymore, and the mortgage company is coming after him.
There is a court order stating that she must refinance and have his name removed from the covenants of the mortgage, so she may be in contempt of court. But it would have been much easier if the caller ensured that this was done as a condition of him signing the deed.
So why didn’t his lawyer catch this? Well, about that…
2. Never “share” a family lawyer with the other party. Even if both parties apparently agree on all the major issues, something inevitably comes up which they hadn’t thought about until a lawyer points it out. And it’s sadly not uncommon for one party to be coerced or bullied into a blatantly unfair, one-sided “agreement.”
The lawyer’s job is to represent your interests. By definition, your interests and those of your ex are not the same. There is an inherent conflict of interest. Had this guy retained his own legal counsel, he likely wouldn’t have gotten into this mess in the first place.
The caller almost certainly has the law on his side, but he remains reluctant to take the matter back to court. Which raises my third point:
3. Don’t “give in” to the other party in the hopes of “keeping the peace.” The caller tells Dave that he isn’t sure taking legal action “is the best decision for [his] children,” because he’s concerned about “keeping the peace between the two households.”
Ramsey responds, “I missed the part where she cares about that.”
Sadly, I’ve seen it many times: a client comes into my office to discuss the other party’s settlement proposal, I point out some blatant deficiencies, but he or she wants to agree “just to get it over with.”
A separation agreement or consent order might be the most important document you will ever sign in your life. If you accede to terms you don’t really agree with, you – and your children – may be stuck with them indefinitely. You can make a court application to vary an order or agreement, but the burden is on you to show that a “material change of circumstances” has occurred. If you knew about these potential problems when you made the agreement, it’s that much harder for you to meet the test.
When one party folds and just accepts what the other side demands, it’s usually shows a severe imbalance in power between the parties. (And it’s not always the female partner being coerced by the man – I’ve worked on several cases where it’s the husband who just wants to “get it over with,” not to mention some same-sex relationship cases.) Rest assured, the party dictating the terms of agreement couldn’t care less about your feelings.